Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Neil J. Wilkof, Annsley Merelle Ward, Nicola Searle, Eleonora Rosati, and Merpel, with contributions from Mark Schweizer. Read, post comments and participate! E-mail the Kats here

The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Tuesday, 14 August 2012

Highland Springs and generic Pimms. Following last Friday's guest post here, in which Catriona Hammer related her personal experiences working for a member of the International Olympic Committee, the IPKat received the following missive from Zoe Birtle (D Young) which, though subsequently posted as a comment beneath the original item, seemed good enough for him to want to share it with all his readers. Says Zoe:

"I had one experience of (perhaps over-zealous) brand protection at the Olympics. As no liquids were allowed to be taken in unless under 100mls, I took to the sailing at Weymouth two empty plastic drinks bottles to fill with water once I got inside the venue. At security my first bottle was deemed unacceptable because it had a “Highland Spring” label on it. Clearly they thought this was a single-handed attempt at ambush marketing. So it was not allowed into the Olympics until the label was removed. However, since my second bottle was branded “Coca Cola” it was allowed to enter the venue unaltered.

Strangely a few days earlier “Highland Spring” was not considered a risk to Olympic Park and no labels were removed when I went to the swimming. They were selling unbranded Pimms at the venues. I am not sure how this is possible since the recipe is supposed to be a secret, so how could it be anything else? It was simply the same Pimms sold as 'No 1 Cup'”.

Around the weblogs. September's JIPLP editorial calls for fuzzy IP law for fuzzy folk. You can read it in full here on the jiplp weblog. Somewhat delayed but nonetheless welcome is The SPC Blog's post on the recent Neutrokine-a decision, which contains some interesting reflections on the timing of references of questions for preliminary rulings within the context of patent litigation here. Finally, there's a very thoughtful post on the 1709 Blog from Iona Harding, "Copyright Law and Alcohol Prohibition", commenting on Donald P. Harris's surprisingly effective comparison of two sets of laws which were markedly out of step with consumer expectations.

Lookalikes -- or just
good friends?

The Identity of Brand Owners. MARQUES, the organisation which has provided an excellent forum in which brand owners have been able to discuss European trade mark matters over the past quarter of a century or so, has announced that it has registered a new trade mark -- the slogan THE IDENTITY OF BRAND OWNERS. You can read all about this on the MARQUES Class 46 weblog here. There's some subtle wordplay going on here: brand owners have an identity of interest, so far as concerns protecting, developing and exploiting their brands -- but the one thing they can never dare to be is identical to one another. The IPKat is curious to know how the organisation will deploy its latest piece of intellectual property; Merpel just wants to see how they deploy it on her new T-shirts ...

Internet prosthetics. Via the ever-viligant Chris Torrero (thanks, Chris!) comes news of TinEye, which informs us as follows about its services:

“TinEye is a reverse image search engine. You can submit an image to TinEye to find out where it came from, how it is being used, if modified versions of the image exist, or to find higher resolution versions”.

You can play around with it for your own amusement, and there is a paid-for version for commercial use. Fascinating, says the IPKat. But supposing it isn't your image that you're submitting, mewses Merpel ...

Looking for something to do? One of the IPKat's local friends in Olympic London tells him that, while she is looking for someone who could work out as an IP lawyer long-term, she has a current vacancy for a two-month internship -- with expenses paid -- to start as soon as possible. If you're interested, email the IPKat here with the subject line "Intern", appending a short CV, and he'll forward it to the firm concerned.

When translated, this
document turned out to be
a runic optician's eye-test chart

Does it count even if it's in Foreign? The IPKat has recently learned of Case: T 1688/08 AN OPTICAL ELEMENT/ Telefonaktiebolaget LM Ericsson, 17 July 2012, in which an European Patent Office Technical Appeals Board delivered a slap on the wrist to the Examining Division for assuming, when considering whether an invention for which patent protection was sought possessed a sufficient degree of inventive step, that the skilled person would only look at the English abstract and drawings of a Japanese language document. The Board [which was presumably unacquainted with the joys of Google Translate, Merpel speculates] held that the language in which a patent document was written could not be the sole decisive criterion for determining whether the person skilled in the art would consider the technical content of that document. If this were not the case, there would be a differentiation between skilled persons according to the language(s) they spoke, which was contrary to the principle that the assessment of the inventive step had to be objective.

How frequent is IP litigation in Slovakia? This is not a question that the IPKat asks himself often, though he has been known to ponder on it when sipping a refreshing beer in the cool evening air of the summertime Tatras. However, his excellent friend and fellow blogger Martin Husovec has been doing some research on this topic. It turns out that, while Slovakian IP litigation exists, the average IP owner, licensee or infringer is hardly more likely to end up in a Slovakian court than he is to find a Yeti. Martin's piece on this subject, which is worth a read, is here.

An offer you can't ... make. From the IPKat's Dutch friends Ruprecht Hermans and Daan de Lange (Brinkhof NV) comes tidings of a Dutch Supreme Court decision of 22 June which, they rightly guess, might just be of some interest to readers of this weblog. The case in question is a patent action: it relates to the infringing act of ‘offering’ and considers, in short, whether an infringing act of "offering" is committed where a generic manufacturer indicates its willingness to supply a pharma product -- in this case the antiemetic Ondansetron -- after such time as the patent for it will have expired. The trial court construed "offer" narrowly and said that no infringing offer had taken place; the Court of Appeal reversed this decision, ruling that there were no legislative grounds for giving the word "offer" a narrow interpretation -- and the Supreme Court agreed. Ruprecht and Daan (who acted for the victorious Glaxo in this case) have kindly let the Kats have a copy of an English translation of this decision, which you can read here.

So, in the Netherlands it is an infringement of a patent to make an offer to supply a product at a time after the patent shall have expired. By the same logic is it an infringement of the patent to make an offer in the Netherlands to supply the product in a country where no patent exists?

an European Patent Office Technical Appeals Board delivered a slap on the wrist to the Examining Division for assuming, when considering whether an invention for which patent protection was sought possessed a sufficient degree of inventive step, that the skilled person would only look at the English abstract and drawings of a Japanese language document.

Actually, the ED did no such thing, as it explicitly noted that the skilled person, if not conversant with the Japanese language, would seek a translation. What the BoA tsk'd at is that the ED then fell rather short of showing that the claimed features could indeed be found in the Japanese language document (presumably, unlike the notional all-knowing skilled person, it couldn't get hold of a competent translation). In short, a run-of-the-mill case of an overly eager ED refusing on badly substantiated grounds of lack of inventive step...

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